NY Religious Corporations Law

Wed Mar 11 12:57:34 PDT 2009

The question here is whether you can satisfy the rule against judicial 
oversight of ecclesiology and permit the states to serve their
legitimate interest in overseeing those that obtain corporation status. 
Religious entities need and/or want to be able to operate with the 
benefits of a corporation, including property ownership by an entity 
that surpasses the lives of any particular individuals and limited 
liability. Incorporation is voluntary, so why isn't there an argument 
that if they choose incorporation and its benefits, they have to
agree to certain state oversight? While it is relatively easy to point 
to potential constituitonal difficulties in the laws as written, there 
are difficult issues getting the balance correct.

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003

-----Original Message-----
From: Marc Stern <mstern at ajcongress.org>
To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
Sent: Wed, 11 Mar 2009 2:23 pm
Subject: RE: NY Religious Corporations Law

Doug is right about the origins of NY's church incorporation law. There 
was a  formal effort to change the whole structure about 20 years ago, 
but it  got hung up mostly, as I recall, by the problem of making the 
transition from old law on which there were substantial reliance 
interests to a new format.

Marc
=0
D

 From: religionlaw-bounces at lists.ucla.edu 
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Wednesday, March 11, 2009 3:19 PM
To: religionlaw at lists.ucla.edu
Subject: NY Religious Corporations Law

Perhaps these separate provisions were originally negotiated with 
leaders of each faith group, attempting to provide what each group 
wanted.  Even so, there is a high likelihood they got it wrong, or that 
orther institutions within the same faith group wanted, or now want, 
something different.  To the extent that these laws are imposing 
governance stuctures on religious organizations contrary to each 
organizations religious self-understanding, they are unconstitutional.

Even if they got it right, and one of these statutory sections is 
exactly what a religious organization wants, there remains the problem 
that the religious organization cannot amend its governance rules 
without going back to the legislature, which is surely also 
unconstitutional.

I take this to be the point of James Madison's Veto Message in 1811, 
vetoing a bill to incorporate the Episcopal Church in Alexandria (then 
part of DC).  The message is often cited for the proposition that 
Madison thought incorporation of churches is unconsistitutional, but 
that is not what he said.  He said:

"The bill enacts into, and establishes by law, sundry rules and 
poceedings relative purely to the organization and polity of the church 

incorporated . . . so that no change could be made therein by the 
particular society, or by the gneral church of which it is a member, 
and whose authority it recognises.  This particular church, therefore, 
would so far be a religious establishment by law; a legal force and 
sanction being given to certain articles in its constitution and 
administration." 

He also objected that the bill gave the church authority to provide for 
the poor, which he said was superfluous if it referred to pious 
charity, and making the church a legal agent for performnig a public 
duty if it were anything more.

Quoting "Friedman, Howard M." <HFriedm at utnet.utoledo.edu>:

> To the extent that the entire NY Religious Corporations Law is
> mandatory, as opposed to merely default provisions that apply in the
> absence of contrary rules in the organization's charter or bylaws, I
> think there are serious constitutional issues with very many of the
> internal governance provisions.
>
>
>
> *************************************
> Howard M. Friedman
> Disting. Univ. Professor Emeritus
> University of Toledo College of Law
> Toledo, OH 43606-3390
> Phone: (419) 530-2911, FAX (419) 530-4732
> E-mail: howard.friedman at utoledo.edu
> *************************************
>
> ________________________________
>
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of SAMUEL M.
> KRIEGER
> Sent: Wednesday, March 11, 2009 1:11 PM
0A> To: Law & Religion issues for Law Academics
> Subject: Re: Connecticut bill
>
>
>
> Just for the sake of perspective  on the proposed Connecticut
> legislation, I would welcome any comments on  Section 200   of   the
> New York Religious Corporations Law (codified in Article 10 
> applicable to "Other Denominations" - including Jewish Congregations
> ) compared  to sub- sections (e) and (h) of the proposed Connecticut
> legislation.
>
>
>
> ------
>
>
>
> "§  200.  Control  of  trustees  by  corporate  meetings;  salaries  
of
>   ministers.
>
>
>
>   A  corporate  meeting  of  an  incorporated  church,  whose
>   trustees  are  elective  as  such, may give directions, not 
inconsistent
>   with law, as to the manner in which any of the temporal affairs  
of  the
>   church   shall  be  administered  by  the  trustees  thereof;  and  
such
>   directions shall be  followed  by  the  trustees.  The  trustees  
of  an
>   incorporated  church  to which this article is applicable, shall 
have no
>   power to settle or remove or fix the salary of the minister, or  
without
>   the  consent  of  a  corporate  meeting,  to  incur debts
 beyond 
what is
>   necessary for the care of the property of the corporation; or to 
fix  or
>   charge the time, nature or order of the public or social worship of 
such
>   church,  except  when  such  trustees are also the spiritual 
officers of
>   such church."  (emphasis supplied)
> --------------------
>
>
>
> The provison  has been  in   NY law in some form since 1813 and was 
> last  amended in 1909 ..
>
>
>
>
>
> SAMUEL M. KRIEGER,ESQ.
> Krieger & Prager LLP
> 39 Broadway
> New York, NY 10006
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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